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United States v. DeSivo

May 28, 2010


The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge

(Judge McClure)



On December 16, 2002, a grand jury returned a six-count superseding indictment against defendant Christopher P. DeSivo. In this indictment, DeSivo was charged with conspiring to manufacture, possessing with the intent to distribute, and distributing methamphetamine under 21 U.S.C. § 846 ("Count One"); possession with intent to distribute and distribution of methamphetamine under 21 U.S.C. § 841(a)(1) ("Count Two"); possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1) ("Count Three"); two counts of witness tampering under 18 U.S.C. § 1512(b)(1) ("Count Four" and "Count Five"); and obstruction of justice under 18 U.S.C. § 1512(c)(2) ("Count Six").

After a jury trial, DeSivo, was found guilty of Counts One, Three, Four, and Six. On January 24, 2007, DeSivo was sentenced to 360 months imprisonment.

The United States Court of Appeals for the Third Circuit, on or about August 7, 2008, affirmed DeSivo's conviction and sentence. The United States Supreme Court denied DeSivo's petition for a writ of certiorari on or about December 8, 2008.


On December 2, 2009, Christopher P. DeSivo, proceeding pro se, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, as well as a brief in support. (Rec. Doc. Nos. 280 and 282). DeSivo included with his motion a number of exhibits which are labeled Attachments 1 through 6 on the docket sheet. (Rec. Doc. No. 281). DeSivo appears to use these attachments as support for the nine grounds in his motion alleging ineffective assistance of counsel. These nine grounds as alleged by DeSivo are more properly categorized as six grounds for the ineffective assistance of counsel: (1) DeSivo's counsel's failure to contest the authenticity of a videotape and recorded calls made in prison; (2) the failure of counsel to call Mark Worthington as a witness for the defense; (3) the failure on the part of DeSivo's counsel to offer evidence relating to ownership of an assault rifle; (4) trial and appellate counsels' failure to properly challenge laboratory results and witness testimony relating to the production of methamphetamine; (5) the combination of all of counsels' errors, which amounted to an unfair trial because, in essence, no defense was presented by counsel; and (6) failure on the part of DeSivo's counsel to challenge testimony that related to DeSivo's fleeing from the police. (Rec. Doc. No. 289 at 9-10).

DeSivo filed a brief in support of his motion on December 3, 2009 (Rec. Doc. No. 282), and the government filed an opposition brief on March 18, 2010 (Rec. Doc. No. 289). DeSivo filed a reply brief on April 12, 2010. (Rec. Doc. No. 293). DeSivo also has filed a motion for discovery and a brief in support (Rec. Doc. Nos. 294 and 295), as well as a motion for the appointment of counsel (Rec. Doc. No. 296).*fn1 The government filed an answer to DeSivo's petition on April 19, 2010. (Rec. Doc. No. 297).*fn2

DeSivo also filed, on April 28, 2010, a motion seeking leave to file a document purporting to be an affidavit of James Rosh apparently related to Grounds Eight and Nine of his § 2255 motion. (Rec. Doc. No. 299). As the government had had no opportunity to respond to this affidavit, we ordered, pursuant to Rule 7(c) of the Rules Governing Section 2255 Proceedings for United States District Courts, as amended effective December 1, 2004, the government to respond stating whether it admitted or denied the document's correctness by May 26, 2010. (Rec. Doc. No. 300). The government filed a response on May 25, 2010. (Rec. Doc. No. 301).*fn3

As the instant matters are ripe for disposition, we will now deny DeSivo's motion to vacate, set aside, or correct his sentence. (Rec. Doc. No. 277). We also will deny his motion for discovery (Rec. Doc. No. 294) and his motion for the appointment of counsel (Rec. Doc. No. 296).


The seminal case used to determine whether trial counsel was ineffective is Strickland v. Washington. 466 U.S. 668 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id. Strickland establishes a two-part test. Id. A defendant claiming ineffective assistance of counsel must show (1) that counsel's representation "fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant."*fn4 Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).

Judicial scrutiny of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or an adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Id. A court must make every effort to avoid the distorting effect of hindsight and evaluate the conduct from counsel's perspective at that time. Id. There is a strong presumption that counsel's conduct was reasonable. Id.; see also Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (noting that "[t]here is a strong presumption that counsel's performance falls within the wide range of professional assistance") (internal quotations omitted).


In light of the following analysis, we conclude that DeSivo has failed to show under Strickland that his attorneys' representation "fell below an objective standard of reasonableness" or that he was prejudiced by any ineffectiveness on the part of his attorneys. Flores-Ortega, 528 U.S. at 478. We also will deny DeSivo's motion for discovery and motion for the appointment of counsel.

1. Ineffective Assistance of Counsel Claims

A. Introduction of Videotape Evidence and Recorded Telephone Calls (Ground One)

First, DeSivo contends that his attorney improperly failed to object to the authenticity of tapes, both audio and video in nature, offered by the United States. DeSivo alleges that these tapes were altered. More specifically, DeSivo alleges that his trial counsel, Scott Gardner, Esq., "allowed edited copies of recorded conversations and edited altered video tape [sic] to be submitted as evidence without review or authentication." (Rec. Doc. No. 280 at 5). DeSivo contends that the removed portions "effectively concealed perjury" committed by the government's witnesses and that counsel's failure to investigate before trial or prevent the introduction of the tape recordings "proves [counsel's] ineffectiveness." Id. Second, DeSivo alleges that his trial counsel "also failed to review the recordings we did obtain and use them for impeachment." Id.

In response, the government first contends that the tapes admitted were in fact fully authenticated and that the calls were not altered but were instead moved onto a composite tape by Trooper Hutson. (Rec. Doc. No. 289 at 15). In light of the proper authentication made by Trooper Hutson, the government contends that there would have been no basis for DeSivo's trial counsel to object to the admissibility of this evidence. Id. at 16. In addition, even if the evidence should have been suppressed, the government argues that "there is still no reason to believe DeSivo suffered any prejudice by their introduction." Id.

According to Fed. R. Evid. 901(a), a tape recording such as that at issue will be properly authenticated or identified so as to be admissible "by evidence sufficient to support a finding that the matter in question is what its proponent claims." Here, the tape recordings were properly authenticated and there is no evidence that the tapes were altered, only that the phone conversations were transferred from a CD as obtained from the prison to a cassette tape, which was a format more easily accessible to court staff. Trial Tr. Vol. 5, 35-40. We first conclude that a failure by counsel to object to the introduction of such evidence was not error. See United States v. Muzychka, 725 F.2d 1061, 1069 (3d Cir. 1984) (noting that the "recordings which the government proposed to offer in this case were authenticated" and that "[t]here is no evidence that they were altered so as to give a misleading account of the recorded conversations"). In any event, ...

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